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property_law:easement:introduction

Cases not covered under the Indian Easements Act

Section 2 of The Indian Easements Act, 1882

Section 2 of the Act provides that nothing contained in the Act shall be deemed to affect any law unless it is expressly repealed by the Indian Easements Act; or to derogate from:

(a) any right of the Government to regulate the collection, retention and distribution of the water of rivers and streams flowing in natural channels, and of natural lakes and ponds, or of the water flowing, collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation;
(b) any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property; or
(c) any right acquired, or arising out of a relation created, before this Act comes into force.

Unrepealed laws

There are several unrepealed Indian enactments in which reference is made to easements, for example;

  • Section 6 of the Transfer of Property Act, Clause (c) provides that an easement cannot be transferred apart from the dominant heritage, and section 8 provides that unless a different intention is expressed or necessarily implied a transfer of property passes forthwith to the transferee the easements annexed thereto.
  • Section 3, Clause (h) of the Land Acquisition Act I of 1894 lays down that for the purposes of the Act, a person shall be deemed to be interested, in land if he is interested in an easement affecting that land.
  • In section 2(5) of the Indian Limitation Act IX of 1908 the definition of an “easement” is given. It extends to the whole of India but by section 29(4) the above definition of “easement” and sections 26 and 27 dealing with the acquisition of “easements” are not to apply to cases arising in the territories to which this Act is applicable.

There are a few other enactments in which reference is made to “easements.” First para of this section lays down that the Act will not affect these enactments.

Power of Government

Clause (a): By the customary law of India the Government has the power to regulate in the public interest the collection, retention and distribution of the waters of natural rivers and streams for the purposes of irrigation. This power, which is really of the nature of a duty, is expressly preserved by section 2 (a) and has been recognised by the Courts.

It is clear from section 2(a) read with S. 7 that the overriding powers of the State to regulate the streams and rivers are not taken away. Further it is well settled that the State while regulating the water source cannot defeat the customary supply of water based upon either prescription or natural right.1)

Customary rights

Clause (b): Where any right, customary or other, however much resembling an easement, has no connection with the enjoyment of any particular heritage it is not an easement and therefore is not affected by the provisions of this Act. For example, a custom of the inhabitants of a particular village, to dance or to have horse-races on the land of an individual, or to go on a close and take water from a spring, or a custom of going on certain land for the purpose of religious observances, or of burying dead and other like customs are not easements inasmuch as these are public rights annexed to the place in general. Similarly, public rights of way which all persons in the empire are entitled to use at their pleasure irrespective of the ownership of any estate are not easements.

There is a world of difference between a customary right and customary easement. An easement is acquired by particular modalities; goes with the land or, rather with the lands : the land which claims the easement is called dominant tenement and the land which is subjected to easement is called servient tenement. Customary easement vests in the dominant tenement; not in the particular person or a group of persons unless they are rightfully in possession of the dominant tenement in question. A customary right, on the other hand, is claimed by a person or by a group of persons under a custom recognised by the community as a whole.2)

No retrospective effect

Clause (c): saves all rights already acquired which spring from some legal relation entered into between parties before the coming into force of this Act, in other words, it means that the Act will have no retrospective effect.

1)
See Medarametla Seshareddy And Ors. vs Korrapati Gopala Reddy And Ors, AIR 1987 Andh. Par. 1 (D.B)
2)
See Smt. Radha Krishna Kandolkar vs Tukaram Pundalik Homkhandi, AIR 1991 Bom 119, 1991 (1) BomCR 315.


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Created on 2021/03/22 11:30 by LawPage • Last modified on 2021/04/09 22:26 (external edit)